The caprice of publishers

By Felix Salmon

September 27, 2012

TSG and Edward Champion have found a flurry of lawsuits brought by Penguin various authors who never delivered the books they promised. The "
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TSG and Edward Champion have found a flurry of lawsuits brought by Penguin various authors who never delivered the books they promised. The lawsuits are asking for the authors’ advances back — but they’re also asking for interest, at pretty high and arbitrary rates.

Going down the list, Penguin is asking for $2,000 in interest from Rebecca Mead, on a $20,000 advance: that’s 10%. Marguerite Kelly is being asked for $5,000 in interest on her $25,000 advance, which is 20%. Lucy Danielle Siegle, Bob Morris, and Deborah Branscum are also being asked for 20% in interest, Elizabeth Wurtzel is at 25%, Jamal Bryant is at 24%, Carol Guber is at 26%, Herman Rosenblat is at 33%, and the Reverend Conrad Tillard is being asked for 35% on the unrepaid portion of his advance. Meanwhile, John Dizard is being asked for 45% in interest, while Ana Marie Cox is being asked for a whopping $50,000 in interest, which is 61.5% of her $81,250 advance.

There are two ways I can think of to justify the enormous range here. The first is just that the contracts were written differently. But if you look at the contracts in the lawsuits (for instance, in the filings for Cox, Wurtzel, Mead, Rosenblat, and Tillard), there’s no mention of interest or interest rates at all.

The other potential justification is that the interest has been accruing over time, and that the authors being asked for the highest interest rates are those who are most behind on their obligations. But that doesn’t hold up either. Wurtzel, for instance, signed her contract in February 2003, and Penguin asked for its $33,000 back in October 2008. If you annualize the interest she’s being asked for, it comes to 2.4% per year if you date the obligation back to 2003, or, alternatively, to 5.8% if you date it back to 2008.

Cox, by contrast, signed her contract much later, in January 2006, and Penguin asked for its money back a little earlier, in August 2007. (Penguin’s clearly a lot less patient when it comes to Cox than when it comes to Wurtzel.) The interest Cox is being asked for works out at 9.2% per year using the earlier date, or 12.1% per year using the later date.

In other words, there’s really no rhyme or reason whatsoever to the interest rates being demanded from these authors. And there’s a reason for going through this exercise: it reveals just how capricious and arbitrary Penguin is being, here. One book agent, Robert Gottlieb, immediately responded on the record, commenting on TSG that “if Penguin did this to one of Trident’s authors we could cut them out of all our submissions” — and you can be quite sure that Penguin did consider the agents of the authors in question before taking this course of action.

Publishers have a lot of power: they can reject a book, and ask for the author’s advance back, just if they say they don’t like the way that it’s written. That $325,000 advance they gave to Ana Marie Cox is certainly a lot of money, but most of it was never paid out, and if Cox’s star waned between the time that the deal was signed and the time that the book was due, Penguin could and did quite quickly move to make it very clear that they didn’t want the book after all — and that they did want their $81,250 back. Regardless of how much work and time and money Cox had invested into the book up to that point.

So while on the one hand it’s reasonable for publishers to ask for their money back if they never got anything in return, on the other hand the incredibly arbitrary nature of these suits — who gets one, who doesn’t, who gets asked for a little interest on top, who gets asked for lots — only serves to underscore the sheer unpredictability inherent in the publishing industry. You might think that you’ve hit the jackpot when you score a massive-sounding book advance. But in fact you’re just embarking on the toughest and most volatile part of the entire process.